Journal of Law and Jurisprudence – Court of Justice of the State of Santa Catarina

The Judiciary and the Legacy of Schmitt, Kelsen, and Heller for Contemporary Democracies

2025-07-28T12:34:34-03:00

This article examines the enduring relevance of Carl Schmitt, Hans Kelsen, and Hermann Heller’s contributions on political power, constitutional adjudication, and democratic legitimacy during institutional crises. Using the Weimar Republic as a historical laboratory, it explores how these three theoretical perspectives, despite being rivals, continue to inform contemporary dilemmas faced by democracies under threat from authoritarian populisms, intense polarization, and institutional weakening. It argues that Kelsen's normativist model, even with its formal insufficiencies, constitutes a more solid barrier against the regression of democracy than Schmitt's decisionist conception, whose rhetorical allure continues to influence authoritarian models disguised as legality. Empirical analysis of experiences in the United States, Brazil, Hungary, and El Salvador reveals that the exception, when converted into ordinary government practice, compromises the foundations of constitutionalism. Heller’s alternative, based on a social theory of the Constitution, although conceptually promising, encounters concrete obstacles in contexts with reduced civic culture and low institutional density. The methodology combines hermeneutic interpretation of primary theoretical sources with a comparative study of relevant jurisprudence, aiming to identify parameters capable of guiding institutional responses compatible with the protection of the constitutional pact.

The Cooperative Model and the Brazilian Code of Civil Procedure: Notes on the Jurisdictional Function Through the Lens of Procedural Cooperation, Ten Years After Its Enactment

2025-02-24T22:38:39-03:00

Objective: This study aims to analyze the conduct of judges within the cooperative model of civil procedure in Brazil, particularly after the enactment of the 2015 Code of Civil Procedure (CCP). It focuses on the structural changes brought by the CCP concerning the allocation of procedural duties and examines how the jurisdictional function operates within this framework. Special attention is given to the cooperative duties assigned to judges and their interpretation by higher courts after a decade of the CCP’s implementation.

Methodology: The research employed a qualitative approach, using the inductive method during the exploratory phase to identify theoretical foundations and the Cartesian method during the analytical phase to process and interpret the data. The logical structure of the text was guided by inductive reasoning, aiming for coherence between theoretical insights and jurisprudential developments.

Results: The study finds that the 2015 CCP significantly reshaped the distribution of roles in civil procedure. While judicial protagonism in dispute resolution remains inadmissible, judicial passivity is likewise impermissible. Case law from higher courts reinforces the expectation that all procedural actors, including judges, must adopt a cooperative posture to ensure procedural fairness, efficiency, and timely decision-making. The cooperative model thus redefines the judge’s role, balancing initiative with restraint.

Conclusion: The cooperative model instituted by the 2015 CCP represents a paradigm shift in Brazilian civil procedure. However, its effective implementation depends on the internalization of cooperative duties by all judicial actors. The analysis concludes that despite advancements in jurisprudence, challenges remain in harmonizing theoretical ideals with procedural practice, particularly regarding the judge’s active-yet-impartial role.

Active transparency: A study of the electronic portals of medium-sized state courts in Brazil

2025-04-05T23:16:42-03:00

Objective: This study aims to analyze the compliance of medium-sized courts in Brazil with active transparency standards established by national legislation, taking into account the gaps identified in previous studies on both active and passive transparency. Specifically, it evaluates adherence to Resolutions No. 102/2009 and No. 215/2015 of the National Council of Justice (CNJ).

Methodology: A descriptive, quantitative research design was adopted, focusing on medium-sized courts as classified by the CNJ in the 2022 edition of the Justice in Numbers report (base year: 2021). Data were collected through systematic observation of the official websites of each court, using a structured script to assess the degree of compliance with legal transparency requirements.

Results: All courts analyzed failed to comply with at least two of the evaluated criteria. A 20% decrease was observed in institutional transparency, and a 13.5% decrease in remuneration disclosure. Conversely, there was an 8.7% improvement in budgetary and financial transparency, a 46.8% increase in social instruction transparency, and a 36% increase in compliance with open data criteria. These findings point to persistent shortcomings such as formalism, lack of openness in public documents, and limited adherence to open data standards.

Conclusion: The lack of standardization in digital systems across courts hampers machine processing, content indexing, and data reuse. The study concludes that the Brazilian Judiciary is still progressing slowly in implementing transparency practices that align with constitutional and legal mandates.

Use of Artificial Intelligence by the Judiciary and the Legality of Resolution n. 615, of March 11, 2025, of the Brazilian National Council of Justice

2025-06-26T13:54:21-03:00

This article examines the use of artificial intelligence within the Judiciary, with emphasis on Resolution n. 615/2025 of the National Council of Justice. The main objective is to determine whether this regulation infringes the principle of legality by governing the use of generative artificial intelligence in the Judiciary. The specific objectives are: (i) to define artificial intelligence; (ii) to contextualize the principle of legality; and (iii) to present the main aspects of the Resolution under analysis. Methodologically, the study employs a deductive method with a qualitative approach, based on a literature review including books, scientific articles, and legislation. The findings indicate that the regulation established by Resolution n. 615/2025 does not violate the principle of legality, provided its parameters are strictly observed, particularly the requirement of human oversight in the use of artificial intelligence.

Acesso Efetivo à Justiça e Discriminação Algorítmica: O Uso de Inteligência Artificial pelo Poder Judiciário

2025-05-19T13:06:02-03:00

The use of artificial intelligence (AI) systems by the judiciary is already a reality and has emerged as an alternative to procedural delays and the overload of cases in judicial institutions. However, algorithmic discrimination poses a clear risk in the use of these systems. In light of this, this study seeks to understand the implications of algorithmic discrimination for effective access to justice and how this fundamental right can be ensured in a scenario of increasing reliance on AI systems by the judiciary. Methodologically, the study adopts the deductive method and the technique of documentary bibliographic research. It concludes that algorithmic discrimination is incompatible with effective access to justice and that overcoming this issue requires the incorporation of an intersectional perspective capable of recognizing and addressing the structural inequalities that affect judicial decision-making.

PERIODIC COURT APPEARANCES MEDIATED BY ARTIFICIAL INTELLIGENCE SYSTEMS: a proposal

2024-09-19T13:29:08-03:00

The research aims to propose that periodic appearance in court, in the various meanings of the institute, be mediated by Artificial Intelligence Systems. The hypothesis is that, in addition to reducing the stigmatization of the investigated/accused/convicted, the use of these systems could positively impact communication, monitoring and efficient compliance with criminal court decisions that require the presence of the obligated party in court. The research is justified insofar as it is necessary to overcome the obsolete legal instrument of physical appearance in court (with analog documentary record) for models facilitated by high-tech Artificial Intelligence systems, which can operate facial biometric reading; instantaneous location of the user or even delimit the space to which he/she must remain confined, which can be done via georeferencing. The inductive method is used in the investigation and production phase of the research report; in data processing, the Cartesian method is used; to verify the results, inductive logic is used. Regarding the methodology, the research uses bibliographical research and official data.

Paradoxo da Inovação Tecnológica e a Inovação Inclusiva para Promoção do Desenvolvimento

2025-08-07T12:11:47-03:00

O presente artigo analisa a relação entre inovação tecnológica e desenvolvimento sob uma perspectiva jurídica e social. Apesar dos avanços tecnológicos, persistem desigualdades sociais e regionais, desafiando a concretização do direito ao desenvolvimento. O problema de pesquisa consiste em analisar como a inovação tecnológica pode contribuir ou prejudicar a promoção do desenvolvimento, considerando as visões antagônicas de Schumpeter e Ulrich Beck. O objetivo é discutir a inovação inclusiva como um caminho para o desenvolvimento, ancorado na solidariedade. Utilizando o método dialético, o estudo contrasta benefícios e mazelas da inovação, embasado em pesquisa bibliográfica e na Constituição Federal de 1988. Conclui-se que, embora a inovação seja essencial, sua eficácia depende da distribuição equitativa de seus benefícios e da solidariedade na difusão das tecnologias.

The epistemic importance of people recognition being done based on an appropriate methodology

2025-07-28T16:39:42-03:00

The article aims to reflect on personal recognition as a way to avoid unfair convictions, analyzing judgments from higher courts and the Psychology of Testimony. The research problem lies in the disconnection between the guidelines of article 226 of the Code of Criminal Procedure and police practice, which often ignores these guidelines, resulting in the prosecution of innocent people. The methodology adopted is deductive and exploratory, using doctrinal sources such as articles, books and case law. The main results highlight the fallibility of human memory, which can be distorted by external suggestions, causing judicial errors. The study warns of the risks of inadequate recognitions and emphasizes the need for independent elements to support convictions. As a contribution, the article suggests that police corporations review their routines, implementing more rigorous procedures to ensure the quality of reports and recognitions.

TECHNOLOGICAL INNOVATION IN THE BRAZILIAN JUDICIAL SYSTEM

2025-06-25T13:04:25-03:00

The Brazilian Judiciary has long been seeking efficient ways to streamline the provision of legal services to society. However, in order to evolve in terms of agility and efficiency, the Judiciary needs to innovate its traditional procedures. Localized technological solutions, however, do not support the necessary integration and security. It is necessary to combine operational-based technology, such as blockchain, with generative Artificial Intelligence. In this paper, we demonstrate the validity of its use, through the main benefits of its adoption: increased productivity, lower operating costs, and benefits to society. Three functional premises are demonstrated, supporting the technological massification with blockchain and AI, as a solution for speed, procedural security, quality, and positive implications for social pacification.

Is the legal answer to climate change in the Brazilian Amazon found in the past? Portuguese considerations on Brazil’s agricultural tenancy law and its reform

2025-04-17T20:12:25-03:00

Objetivos: Assumindo o Direito como uma tecnologia social, inclusive quanto aos contratos privados, a presente pesquisa pretende estudar as vias de adaptar os regimes aplicáveis atualmente ao arrendamento rural no Brasil aos desafios da Mudança do Clima, em especial em regiões mais vulneráveis, como a Amazônia.

Metodologia: Foram sobretudo seguidos métodos jurídicos consolidados, como o analítico, o histórico e o comparativo, com vista a identificar as alternativas mais viáveis, desde as lições aprendidas com soluções legislativas já colocadas em prática, tanto no Brasil quanto em Portugal.

Resultados: A pesquisa mostra como, sem alterações profundas do Ordenamento brasileiro relativo aos contratos agrários, ou até apenas por iniciativa das partes, é possível efetivar uma atribuição mais adequada dos riscos resultantes da Mudança do Clima.

Contribuições: Esta pesquisa abre caminhos novos, ao ir além das Políticas Públicas na adaptação das atividades económicas à Mudança do Clima, desde uma perspectiva rigorosa de Direito Privado, tendo por base as Fontes históricas do Direito Brasileiro.